CIA To Close Declassification Office Due To Sequestration Cuts; Transparency In Question

FILE – In this Oct. 29, 2010 file photo, Then Deputy National Security Adviser for Homeland Security and Counterterrorism John Brennan briefs reporters at the White House in Washington.(AP Photo/Charles Dharapak, File)

On August 16, the Central Intelligence Agency released to researchers at George Washington University a report that disclosed publicly for the first time the existence of Area 51, the use of British pilots in the U-2 Soviet surveillance program, the establishment of the unmanned drone program in 1954 and that the Indian government consented to allowing the CIA to use one of its air bases in a plan to target Chinese terrorists following the 1962 war.

Revelations like these help the American people understand the history and involvements of the nation and help to erode the sense of the government keeping secrets from the American people. The notion that “the truth will eventually come to light” has helped many to reconcile their fears of an “all-powerful” government and has given those skeptical of the government’s actions relief in knowing that the government will eventually be held accountable for all it does.

“Our democratic principles require that the American people be informed of the activities of their Government,” read Executive Order 13526, as amended, “Classified National Security Information” — the federal guideline for the classification and declassification of national intelligence. “Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.”

Recent sequestration cuts, however, threaten to cripple this essential safeguard. The CIA — the Directorate of National Intelligence’s HUMINT, or primary human intelligence and general analytic agency — is closing its Historical Collections Division office, which conducts the voluntary declassification of documents of historical importance. The responsibilities of the division will be transferred to the CIA’s Freedom of Information Act request handler.

“As a result of sequestration, elements of one program office were moved into a larger unit to create efficiencies, but CIA will continue to perform this important work,” said Edward Price, a CIA spokesman.

Government transparency

The closing of the office is not heralded by any particular party and is actually being mourned by many pro-government transparency advocates. The CIA’s FOIA handler is notably user-unfriendly, with long wait times and a less-than-eager willingness to share information. “This move is a true loss to the public,” said Mark Zaid, a Washington lawyer who frequently litigates against the CIA, to the Los Angeles Times. He said the CIA’s FOIA handler “is the most obstructionist and unfriendly of those I have dealt with during the last two decades.”

“This is very unfortunate,” said Robert Jervis, a Columbia University professor who chairs the CIA’s Historical Review Panel. “There will be fewer releases. We shouldn’t fool ourselves.” Reports and disclosures from the CIA’s Historical Collections Division office typically are used by academics, lawyers and historians.

As the Directorate of National Intelligence’s budget is classified, it is unclear how sequestration affects the CIA — if at all. Unlike the Pentagon and other national security agencies, the Directorate has not resulted in furloughs to balance its budget. Instead, all outward efforts to cut the National Intelligence office have come by way of how the agency declassifies intelligence — including cutting spending to outside contractors that are used to process and redact documents for declassification.

Classification in America

The vast majority of declassification in the United States is automatic. Unlike England, which has the Official Secrets Act, the United States does not have an omnibus law that controls the universal classification and declassification of intelligence. Despite the existence of laws, such as the Espionage Act of 1917, the Atomic Energy Act of 1954 and the Intelligence Identities Protection Act of 1982, the practical authority of the federal classification system is based on the threat of the government prosecuting the theft of government property.

As stated in a 2013 Congressional Research Service report, “…criminal statutes that may apply to the publication of classified defense information … have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it), who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. While prosecutions appear to be on the rise, leaks of classified information to the press have relatively infrequently been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.”

As a matter of course, no Congress in recent memory has seriously taken up the task of establishing a comprehensive classification law. In order to address this shortcoming, presidents have been forced to issue executive orders to direct executive branch agencies on how to deal with classification. The latest, Executive Order 13526, drafted by President Obama in 2009 in reflection of 32 C.F.R. 2001, establishes clear rules for declassification.

According to the executive order, all federal documents’ classification expires 25 years after the document is classified, unless the document qualifies for classification status extension under one of nine narrowly-defined exemptions: the document reveals the identity of a confidential source, the document would assist in the construction of a weapon of mass destruction, the document would reveal American codes and code-keeping methods, the document would reveal means to disable an American weapon system, the document would reveal active war plans, the document would damage diplomatic relations with another country, the document would endanger national security or the safety of the executive branch, the document would reveal the current national security emergency preparedness plans and finally, a current treaty or statute bans the disclosure of the document. The agency requesting an extension must prove that the document meets one of these exemptions.

After 50 years, a document can only remain classified by presidential order if the document details the construction or use of a weapon of mass destruction or discloses an intelligence source. At the 75 year mark, all federal documents — Census individual records, presidential briefing, treaty negotiation notes, etc. — are declassified, unless explicitly blocked by the president.

In addition, executive branch agencies, under the president’s 2010 Open Government Initiative, are required to systematically review documents younger than 25 years of age for historical value and adherence to the exemptions from declassification and release non-security-critical documents in a timely manner. Also, if an individual were to ask for a specific document, the federal agency must prove that the document meets the exemptions for declassification or release it to the requester.

Turning off the tap

Some have argued that in light of the administration’s current problems in controlling national security information, and considering the administration’s assurances of transparency, the government, while not restricting the ability to seek information from the government, could slow the flow of that information by limiting the number of people available to declassify and disclose the national intelligence and forcing longer wait times. As revealed in a report from the National Archives and Records Administration, the government declassified 20 million documents last fiscal year, the lowest amount since Reagan’s first term. Nearly one billion documents were classified last fiscal year.

In light of all of the crippling cuts sequestration has caused — cuts to early childhood education, aid to needy family and children, reductions to military staffing levels — this particular cut seems of mild interest, at best. However, in light of an administration at war with its secrets, this shift of priorities says a lot.

“Sequestration forces the intelligence community to reduce all intelligence activities and functions without regard to impact on our mission,” testified Director of National Intelligence James Clapper before the Senate Armed Service Committee on the effect of sequestration cuts. “Unlike more directly observable sequestration impacts like shorter hours at the parks or longer security lines at airports,” he said, “the degradation to intelligence will be insidious. It will be gradual and almost invisible until, of course, we have an intelligence failure.”